STATE v. MUTHE (2019)

Salvador Maye Muthe (“Defendant”) appeals from a judgment entered following a jury's verdicts finding him guilty of two counts of statutory rape and one count of indecent liberties. We find no error.

I. Background

In 2016, a fourteen-year-old female, referred to as “Kelly,” met Defendant through her older cousin, who had been dating Defendant at the time. Defendant and Kelly began exchanging text messages. Kelly had a best friend, referred to as “Sue,” who was also fourteen years old. In October 2016, Defendant invited Kelly and Sue, as well as their friends referred to as “Denise” and “Pam” to eat dinner at an IHOP restaurant. Pam's eighteen-year-old boyfriend, Dakota, accompanied the group to dinner.

After dinner, Defendant drove Kelly and her friends to a cabin in his truck. Defendant had been working at the cabin on behalf of the owner. Kelly and her friends briefly looked around inside the cabin and Defendant drove them back home.

During the following week, Defendant sent Kelly more text messages, including ones about sexual acts Defendant stated he wanted to perform upon her. On Friday, 28 October 2016, Defendant picked up Sue, Kelly, Denise, Pam, and Dakota and drove them back to the cabin to spend the weekend.

On Friday evening, Kelly and Defendant went to bed in the upstairs bedroom. Around 4 a.m. the next morning, Defendant and Kelly engaged in sexual intercourse. At approximately 7 a.m., Defendant and Kelly again had sexual intercourse.

On Saturday evening, Kelly and Sue shared a bed with Defendant. During the course of the night, Defendant allegedly engaged in sexual intercourse with both Kelly and Sue. Afterwards, Sue and Kelly went into the downstairs bathroom to clean themselves. Denise and Pam followed them into the bathroom, where Sue and Kelly told them about what had transpired earlier between them and Defendant. After Sue and Kelly showered in the bathroom, they slept in a room separate from Defendant.

During the next day, Sunday, Kelly and Sue avoided talking to Defendant. On Monday morning, Defendant drove Sue, Kelly, and their friends to Dakota's house. Defendant left for work.

Lauren Adams, a licensed clinical social worker, had been Sue's therapist since August 2014, and Kelly's therapist since January 2015. Adams worked for Meridian Behavioral Health Services and Haywood County Psychological Services. As part of her duties, Adams held counseling sessions with Sue and Kelly at their school.

In November 2016, Sue asked Adams a hypothetical question about what her obligations be would if two of Sue's minor friends had engaged in sexual relations with an older man. Adams told Sue that if told of an adult victimizing a child, Adams would be required to report it to child protective services and, potentially, to law enforcement. A couple of weeks later, Sue disclosed to Adams that her hypothetical incident did not happen to two of her friends, but had actually happened to her and Kelly.

When Adams spoke with Kelly, Kelly disclosed that she had engaged in sexual intercourse with Defendant twice while at the cabin and Sue had engaged in sexual intercourse with Defendant while Kelly was present. Based upon Kelly and Sue's disclosures, Adams reported the incidences to child protective services and to the school resource officer, Haywood County Sheriff's Deputy Edmund New.

Deputy New conducted an initial investigation of Sue and Kelly's allegations. Deputy New verified the location of the cabin and obtained photographs of Defendant and his truck from the website, Facebook.com. Deputy New prepared an initial report and contacted Haywood County Sheriff's Detective Heath Justice. Detective Justice was the lead investigator of child abuse and sex crimes with the Haywood County Sheriff's Office.

Detective Justice conducted interviews with Sue, Kelly, Pam and Denise. Detective Justice contacted Defendant by telephone to request an opportunity to speak with him. Defendant told Detective Justice he was going to be out of town, but told the detective of a date he would be available to speak with him. Defendant never came in to speak with Detective Justice.

A grand jury returned indictments against Defendant for four counts of statutory rape of a person fifteen years of age or younger and four counts of indecent liberties with a child. At trial, the State presented the testimony of Sue, Kelly, Denise, Pam, Dakota, Adams, Deputy New, Detective Justice, and others. Detective Justice testified, in relevant part, that Defendant's birth date was 31 March 1983.

Following its deliberation, the jury found Defendant guilty of one count of statutory rape of Kelly, one count of indecent liberties with Kelly, and one count of statutory rape of Sue. The jury acquitted Defendant of the remaining five charges. The trial court consolidated Defendant's convictions and sentenced Defendant to 240 to 348 months imprisonment and to register as a sex offender for thirty years following his release from prison. Defendant gave notice of appeal in open court.

II. Jurisdiction

Jurisdiction lies with this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2017).

III. Issue

Defendant's sole argument on appeal asserts the trial court committed plain error by admitting purported hearsay evidence to establish Defendant's date of birth, when his and the victims’ ages were essential elements of the charged offenses. Defendant contends that the following testimony of Detective Justice constitutes inadmissible hearsay:

[Prosecutor]: Were you able to determine the date of birth of the defendant?

[Detective Heath]: It was March – March the 31st, 1983.

Defendant did not object to the admission of this testimony at trial, and acknowledges the alleged error is to be reviewed on appeal only for plain error.

IV. Standard of Review

“[A]n issue that was not preserved by objection noted at trial ․ may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R. App. P. 10(a)(4). Plain error arises when the error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation marks and citation omitted). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted).

V. Analysis

Defendant argues the trial court plainly erred by allowing Detective Justice to offer purported hearsay evidence of Defendant's age. We disagree.

Defendant was charged with multiple counts of statutory rape and indecent liberties with a child pursuant to N.C. Gen. Stat. §§ 14-27.25(a), and 14-202.1 (2017). A defendant is guilty of statutory rape under N.C. Gen. Stat. § 14-27.25(a): “if the defendant engages in vaginal intercourse with another person who is 15 years of age or younger and the defendant is at least 12 years old and at least six years older than the person[.]” (emphasis supplied). A defendant is guilty of indecent liberties with a child under N.C. Gen. Stat. § 14-202.1(a):

[I]f, being 16 years of age or more and at least five years older than the child in question, he either ․ [w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or ․ [w]illfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years. [emphasis supplied].

Defendant's and the victims’ ages were essential elements of the charged offenses.

It is well-established that hearsay is generally inadmissible as evidence. N.C. Gen. Stat. § 8C-1, Rule 802 (2017). “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2017) (emphasis supplied); see State v. Nicholson, 355 N.C. 1, 35, 558 S.E.2d 109, 133 (2002) (“The prohibition against hearsay bars the admission of out-of-court statements offered to prove the truth of the matter asserted.” (citation omitted)).

Defendant relies upon the Supreme Court of North Carolina's opinion in State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), in support of his argument. Defendant asserts Gray stands for the proposition that “testimony concerning a defendant's date of birth cannot be gleaned from a non-testifying person or unintroduced document[,]” and, therefore, Detective Justice's testimony was inadmissible because his testimony “makes clear that he did not know [Defendant's] date of birth, but was later able to ‘determine’ that it was ‘March the 31st, 1983’ ” from an unstated source.

The defendant in Gray was tried for first-degree rape, among other crimes. Id. at 274, 233 S.E.2d at 908. To prove the element that the defendant was more than 16 years old, the State introduced a document signed by a county deputy registrar titled, “Certified Certificate of Birth.” Id. at 284, 233 S.E.2d at 915. This document was not a certified copy of a birth record. Id. at 287, 233 S.E.2d at 916. Rather, it “summarize[d] certain information which is apparently recorded in the Office of Vital Statistics in Mecklenburg County on Birth Certificate No. 868.” Id. The Court held this document constituted double hearsay because it was “no more than the Deputy Registrar's assertion of what she found on the recorded birth certificate.” Id. at 287-88, 233 S.E.2d at 916.

However, the Supreme Court affirmed lay opinion testimony regarding defendant's age, adopting

the rule that lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of a defendant in a criminal case when the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the state. It is important to note that the exact age of the defendant is not in issue, nor need the state prove it. It must prove only that he was at the time of the offense charged over sixteen. The rule we adopt should not be interpreted to extend to any case, criminal or civil, where the exact age of someone must be proved.

Id.

Defendant relies on the State's question to Detective Justice, wherein the State asked whether Detective Justice was able “to determine” Defendant's date of birth. Detective Justice never testified that he gleaned Defendant's date of birth from a non-testifying person or an unintroduced document. Defendant simply presumes there must have been an unstated source.

If Defendant had objected to Detective Justice's testimony, the trial court might have learned the Detective did learn Defendant's birth date from a non-testifying person or an unintroduced document. In that case, the testimony may be double hearsay, similar to the “Certified Certificate of Birth” in Gray. Id. at 284, 233 S.E.2d at 915. Those facts are not in the record before this Court. We simply do not know how Detective Justice obtained this information. Detective Justice's testimony could be consistent with “the rule that lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of a defendant in a criminal case[.]” See id. at 287, 233 S.E.2d at 916.

Detective Justice's testimony concerning Defendant's age was not a repetition of an out-of-court statement, but was Detective Justice's direct statement, made under oath, responding to a question regarding Defendant's birth date. See N.C. Gen. Stat. § 8C-1, Rule 802.

Defendant failed to object and had a full and fair opportunity to cross-examine Detective Justice regarding how he came to know Defendant's date of birth, but declined to do so. Defendant has failed to establish the trial court erred, much less plainly erred, by admitting Detective Justice's testimony. Defendant's argument is overruled.

VI. Conclusion

Upon plain error review, Defendant's assertion that Detective Justice's testimony regarding Defendant's date of birth constituted inadmissible hearsay is without merit. Defendant has failed to show error, much less plain error, in the trial court allowing Detective Justice's unobjected-to testimony concerning Defendant's date of birth.

Defendant received a fair trial, free from prejudicial errors he preserved and argued. We find no error in Defendant's convictions and the judgment entered thereon. It is so ordered.

NO ERROR.

Report per Rule 30(e).

TYSON, Judge.

Judges INMAN and ARROWOOD concur.